Beliveau v. US DOL

• Court: Court of Appeals for the First Circuit
• Decided: March 10, 1999
• Docket: 98-1786
• Status: Published

Opinion

USCA1 Opinion

                  United States Court of Appeals

                      For the First Circuit

                       ____________________



No. 98-1786



                      JOHN J. BELIVEAU, JR.,

                           Petitioner,



                                v.



              UNITED STATES DEPARTMENT OF LABOR AND

                  NAVAL UNDERSEA WARFARE CENTER,

                           Respondents.



                       ____________________



            ON PETITION FOR REVIEW OF A FINAL DECISION

               AND ORDER OF THE SECRETARY OF LABOR



                       ____________________



                              Before



                      Boudin, Circuit Judge,



                  Aldrich, Senior Circuit Judge,



and Shadur, Senior District Judge.



                      _____________________



     Richard E. Condit, with whom Sarah L. Levitt, was on brief,

for petitioner.

     Joanne Royce on brief for Government Accountability Project,

amicus curiae.

     Ford F. Newman, Attorney, with whom Judith E. Kramer, Deputy

Solicitor, Steven J. Mandel, Associate Solicitor, and Paul L.

Frieden, Counsel for Appellate Litigation, U.S. Department of

Labor, were on brief, for respondent U.S. Department of Labor.


____________________



                         March 10, 1999

                       ____________________          SHADUR, Senior District Judge.  John Beliveau

("Beliveau") was hired as Environmental Program Manager by the

Naval Undersea Warfare Center ("Navy") in March 1994.  In the

course of discharging his duties Beliveau became aware of actual

and suspected violations of the Clean Air Act (42 U.S.C.  7622),

the Safe Drinking Water Act (42 U.S.C.  300j-9(i)), the Resource

Conservation and Recovery Act (42 U.S.C.  6971), the Comprehensive

Environmental Response, Compensation and Liability Act (42 U.S.C.

 9610), the Toxic Substances Control Act (15 U.S.C.  2622) and

the Clean Water Act (33 U.S.C.  1367).  After disclosing those

violations to Navy officials and finding that no action was taken,

Beliveau reported his concerns to the United States Environmental

Protection Agency ("EPA").

     EPA began an inspection that resulted in fines being

levied against the Navy.  After that investigation the Navy

transferred Beliveau to a position that he claimed had

"substantially less authority and responsibility."  Beliveau then

filed a complaint on February 7, 1995 with the Wage and Hour

Division ("Wage & Hour") of the Department of Labor ("Department"),

claiming he had been discriminated and retaliated against for

engaging in behavior protected by the already-listed statutes in

addition to the Occupational Safety and Health Act (29 U.S.C.

 660(c)).

     On June 15, 1995 Beliveau and the Navy entered into a

Memorandum of Agreement and Settlement ("Settlement Agreement"),

and Beliveau withdrew his complaint.  Although Wage & Hour's

Assistant District Director sent a letter on that same day

confirming that the parties had reached a settlement and that

Beliveau's complaint had been withdrawn, the Settlement Agreement

had neither been reviewed nor approved by the Secretary of Labor

("Secretary").

     Under the Settlement Agreement Beliveau agreed to

withdraw his complaint, to return all documents related to the Navy

and to resign voluntarily from the Navy in September 1997.  Other

provisions prohibited Beliveau from cooperating in any proceedings

against the Navy unless compelled by force of law, from

communicating with anyone regarding the information he had learned

during his employment with the Navy, from publicly disclosing the

terms of the Settlement Agreement, from communicating with current

or former Navy employees without approval by the Navy, from working

for or seeking employment with the Department of Defense or EPA and

from entering any site of his former employer or the Newport Naval

Complex.

     In October 1996 and March 1997 Beliveau filed additional

complaints with Wage & Hour, claiming that the Navy had engaged in

further retaliatory actions and had violated the Settlement

Agreement.  Then on April 28, 1997 Beliveau filed a motion with a

Department administrative law judge ("ALJ") to reopen the 1995

complaint, arguing that the Settlement Agreement itself was void

because it had not been approved by Secretary.  Because Wage & Hour

had not made any findings and because no request for a hearing

regarding the 1995 complaint had been filed with the Office of

Administrative Law Judges, the ALJ held that he did not have

jurisdiction over the 1995 complaint.

     Ultimately, however, after Beliveau had then refiled his

motion to reopen with Wage & Hour and that motion had been denied

on May 28, 1997, the case was formally assigned to an ALJ for

determination.  Beliveau's main argument, that Secretary had

improperly failed to review and approve the Settlement Agreement,

was rejected and his motion for reopening was denied.  Department's

Administrative Review Board ("Board") then affirmed that denial,

specifically rejecting Beliveau's argument that the Settlement

Agreement was void due to the lack of express approval by

Secretary.

     Beliveau brought this appeal, seeking to reverse Board's

decision about the necessity of Secretarial review and approval of

settlements.  In addition Beliveau asks that the case be remanded

with specific instructions to issue an order voiding the Settlement

Agreement and reopening the case.  While we do remand Beliveau's

case to Secretary for review of the Settlement Agreement, we deny

his request for an order mandating Secretary's disapproval of that

Agreement.

                        Standard of Review

     Dubois v. United States Dep't of Agric., 102 F.3d 1273,

1284 (1st Cir. 1996), quoting from and citing to 5 U.S.C.  706,

has reconfirmed the general standard for reviewing administrative

agencies' decisions:

          Under the APA [Administrative Procedure

          Act], "[t]he reviewing court shall...hold

          unlawful and set aside agency action,

          findings, and conclusions found to be

          arbitrary, capricious, an abuse of

          discretion, or otherwise not in accordance

          with law."  Errors of law are reviewed by

          the court de novo.



That standard applies here.

                Requirement of Secretarial Review

     Whether Secretary has a statutory obligation to review

and approve settlement agreements, such as the one entered into

between whistleblower Beliveau and Navy as his employer, is the

central issue of this appeal.  Beliveau argues that the employee

protection provisions in three statutes require Secretary to take

such action: the Toxic Substances Control Act, the Clean Air Act

and the Safe Drinking Water Act.  Specifically, Section

2622(b)(2)(A)(which as stated earlier is part of the Toxic

Substances Control Act) provides (emphasis added):

          Upon receipt of a complaint filed under

          paragraph (1), the Secretary shall conduct

          an investigation of the violation alleged

          in the complaint.  Within 30 days of the

          receipt of such complaint, the Secretary

          shall complete such investigation and

          shall notify in writing the complainant

          (and any person acting on behalf of the

          complainant) and the person alleged to

          have committed such violation of the

          results of the investigation conducted

          pursuant to this paragraph.  Within ninety

          days of the receipt of such complaint the

          Secretary shall, unless the proceeding on

          the complaint is terminated by the

          Secretary on the basis of a settlement

          entered into by the Secretary and the

          person alleged to have committed such

          violation, issue an order either providing

          the relief prescribed by subparagraph (B)

          or denying the complaint.  An order of the

          Secretary shall be made on the record

          after notice and opportunity for agency

          hearing.  The Secretary may not enter into

          a settlement terminating a proceeding on a

          complaint without the participation and

          consent of the complainant.



     According to Board (which exercises Secretary's powers in

whistleblower cases--see Secretary's Order 2-96, 61 Fed. Reg.

19,978 (1996)), that provision requires Secretary to review

settlements that have been reached by the disputants only after a

request for a hearing has been filed with an ALJ.  As Board would

have it, before such a request is made (for example, during the

investigative stage of a complaint) no "proceeding" is pending and

secretarial review is not required.  Furthermore, Secretary argues

here that "[t]his reflects a reasonable interpretation of the

statutory term 'proceeding,' an interpretation which is entitled to

Chevron deference from this Court."

     But Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837, 843 (1983) teaches that courts are to

grant such deference only where "the statute is silent or ambiguous

with respect to the specific issue" and "the agency's answer is

based on a permissible construction of the statute."  No deference

is called for where "the intent of Congress is clear" (id. at 842),

as is the case with the statutes at issue here--in that event the

clear congressional intent "is the end of the matter" (id.).  As we

have explained in Arnold v. United Parcel Serv., Inc., 136 F.3d

854, 857-58 (1st Cir. 1998), quoting Caminetti v. United States,

242 U.S. 470, 485 (1917):

          If the language of a statute "is plain and

          admits of no more than one meaning" and

          "if the law is within the constitutional

          authority of the law-making body which

          passed it," then "the duty of

          interpretation does not arise" and "the

          sole function of the courts is to enforce

          the statute according to its terms."



     Secretary's reading of the statutory provision, under

which no "proceeding on the complaint" exists until it reaches the

formal stage that looks to an ALJ hearing, does violence to both

the structure and the language of the statute.  To the contrary,

the initial (and undefined) use of the word "proceeding" in the

emphasized statutory language quoted earlier, when coupled with the

statutory directives and timetables in both that and the preceding

sentence, compel the conclusion that "the proceeding on the

complaint" has begun when it first reaches Secretary, triggering

her obligation to conduct an investigation.  That normal meaning,

rather than any strained and formalistic reading, of the word

"proceeding" in the context of the statute is the only reasonable

one called for by the plain language of the employee protection

provision.

     Indeed, that identical reading has been given to the

totally parallel language of the Energy Reorganization Act (42

U.S.C.  5851) by the Fifth Circuit in Macktal v. Secretary of

Labor, 923 F.2d 1150, 1153 (5th Cir. 1991)(emphasis added):

          Once a complaint is filed, the statutory

          language authorizes only three options:

          (1) an order granting relief; (2) an order

          denying relief; or (3) a consensual

          settlement involving all three parties.



And as Macktal, 923 F.2d at 1154 (footnote omitted) went on to

observe:

          The words of the statute require the

          Secretary to take one of three actions

          once a complaint is filed.  The statute

          makes no exception for cases in which the

          complainant and the company reached an

          independent settlement.



Although to be sure Macktal addressed a somewhat different question

from that posed to us--what was at issue there was whether

Secretary can alter a negotiated settlement agreement without the

parties' consent--the Fifth Circuit's reading of the exclusivity of

the three avenues that are available to Secretary under the

employee protection provision, once a complaint has been filed,

applies here with equal force.

     Indeed, what may well be viewed as the most powerful

evidence of the statute's nonambiguity and of what we have found to

be its plain meaning is internal to the statute itself.  Here is

Section 2622(a), a portion of the same statutory section that

immediately precedes the Toxic Substances Control Act provision

that we are considering:

          No employer may discharge any employee or

          otherwise discriminate against any

          employee with respect to the employee's

          compensation, terms, conditions, or

          privileges of employment because the

          employee (or any person acting pursuant to

          a request of the employee) has--

             (1) commenced, caused to be commenced,

             or is about to commence or cause to be

             commenced a proceeding under this

             chapter;



             (2) testified or is about to testify

             in any such proceeding;  or



             (3) assisted or participated or is

             about to assist or participate in any

             manner in such a proceeding or in any

             other action to carry out the purposes

             of this chapter.



         It could not rationally be contended, of course, that the

"proceeding" referred to in Section 2622(a)(1) as being "commenced"

by an employee comes into existence only when the employee's

complaint reaches the stage at which--following Secretary's

investigation of that complaint--a request for a hearing has been

filed with an ALJ.  If that were the case, the complaining employee

would not be protected against the swiftest acts of retaliation by

the employer--for example, a discharge or other discriminatory

action taken hard on the heels of the employee's filing of the

complaint (which, under each statute involved here (see, e.g.,

Section 2622(b)(1)) expressly requires Secretary to notify the

employer of that filing).  Any such reading would be particularly

absurd in light of the uniform holdings in cases that involve

claimed retaliatory actions by employers that temporal proximity is

an important component (in fact, often the most persuasive factor)

in the employee's required proof of a causal relationship between

his or her statutorily protected conduct and the employer's

asserted retaliation (see, e.g., Wyatt v. City of Boston, 35 F.3d

13, 16 (1st Cir. 1994) (per curiam) and Oliver v. Digital Equip.

Corp., 846 F.2d 103, 110 (1st Cir. 1988), each of which confirms

that principle in the most frequently encountered context of claims

of employment discrimination).

         Secretary has expressly recognized the common sense

meaning of "proceeding" in the directly relevant context of

retaliatory action by an employer in a whistleblower situation.  In

Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505, 1511 (10th Cir.

1985) the accused employer was arguing against the notion that an

employee's internal complaints to the employer, as contrasted with

the employee's later contact with governmental authorities, could

constitute a "complaint" for statutory purposes so as to trigger

the Energy Reorganization Act's antiretaliatory protection. 

Secretary argued otherwise, characterizing such an internal

communication as a "complaint and--significantly for present

purposes--going on to stake out this position (id.):

           Further, the Secretary asserts that the

           filing of a "Complaint, will initiate a

           proceeding."



Yet Secretary would now have it that the identical word

"proceeding" has totally different meanings in two successive

subsections of the same statutory section:  Even though Secretary

has thus urged that a "proceeding" is initiated by the filing of a

complaint for purposes of the first subsection, she contends here

that the "proceeding" somehow does not begin until the ALJ stage is

reached for purposes of the second subsection.  Though we may

recognize Emerson's aphorism that "A foolish consistency is the

hobgoblin of little minds, adored by little statesmen and

philosophers and divines," nothing compels us to accept such

foolish inconsistency--and we do not.

         Moreover, Secretary has elsewhere confirmed the strong

policy argument for requiring review and approval of employee

settlement agreements at any stage, not merely the one now plumped

for by Secretary.  Hoffman v. Fuel Econ. Contracting, 97-ERA-33

(Sec'y Order Denying Request to Reconsider, August 4, 1989)

stated:

          The Department of Labor does not simply

          provide a forum for private parties to

          litigate their private employment

          discrimination suits.  Protected

          whistleblowing under the ERA may expose

          not just private harms but health and

          safety hazards to the public.  The

          Secretary represents the public interest

          by assuring that settlements adequately

          protect whistleblowers.



That order reaffirmed Secretary's critical role in determining that

a settlement is "just and reasonable and in the public interest,"

a role that is equally important throughout every stage of the

process that begins with the filing of a complaint.

     What we have said to this point calls for a remand to

Secretary for the statutorily required review of the Settlement

Agreement.  But nothing in the statute or in the posture of the

case allows (or calls for) our preemption of Secretary's role in

conducting that review--that would be the effect of our granting

Beliveau's request for a direction to void that Agreement. 

Secretary's assertion on this appeal of the legal position that no

Secretarial review was required sends no signal that the review,

when ordered as it now has been, cannot be conducted appropriately

by Secretary's taking all relevant factors into account.

                            Conclusion

     Board's decision is REVERSED.  This action is REMANDED to

Secretary for her review of the Settlement Agreement, to be

followed by such further proceedings as may be called for on

completion of that review.